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Health and Social Care Bill (HL Bill 92)

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(ii) is information which Monitor considers it would be
appropriate for that purpose to give to the Commission
without request, and

(b) such other assistance as the Commission may require, and as is
5within its power to give, in relation to any such matters.

(2) The Commission must, for the purpose of carrying out the investigation or
the function, take account of such information as is given to it for that
purpose under sub-paragraph (1).

Time limits

(1) 10A reference must specify a period within which the Competition
Commission must make a report on the reference.

(2) A period specified for the purposes of sub-paragraph (1) must not be longer
than six months beginning with the date of the reference.

(3) A report of the Commission on a reference does not have effect (and no
15action may be taken in relation to it under paragraph 7) unless the report is
made before the end of—

(a) the period specified in the reference, or

(b) such further period as is allowed under sub-paragraph (4).

(4) Monitor may, if it receives representations on the subject from the
20Competition Commission and is satisfied that there are special reasons why
the report cannot be made within the period specified in the reference,
extend the period by no more than six months.

(5) But Monitor may not make more than one extension under sub-paragraph
(4) in relation to the same reference.

(6) 25Where Monitor makes an extension under sub-paragraph (4), it must send
notice of the extension to the relevant persons.

(7) Monitor must also publish the notice.

Reports on references

(1) In making a report on a reference, the Competition Commission—

(a) 30must include in the report definite conclusions on the questions in
the reference together with such an account of its reasons for those
conclusions as it considers expedient for facilitating a proper
understanding of those questions and of its conclusions,

(b) where it concludes that any of the matters specified in the reference
35operate, or may be expected to operate, against the public interest,
must specify in the report the effects adverse to the public interest
which those matters have or may be expected to have, and

(c) where it concludes that any adverse effects so specified could be
remedied or prevented by changes in relation to the matters
40specified in the reference, must specify in the report changes which
could remedy or prevent those effects.

(2) For the purposes of paragraphs 7 and 8, a conclusion in a report of the
Commission is to be disregarded if the conclusion is not that of at least two-
thirds of the members of the group constituted in connection with the

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reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act
1998.

(3) If a member of a group so constituted disagrees with a conclusion in a report
made on a reference, the report must, if the member so wishes, include a
5statement of the member’s disagreement and reasons for disagreeing.

(4) A report of the Commission on a reference must be sent to Monitor.

(5) On receiving a report on a reference, Monitor must send a copy of it to the
Secretary of State.

(6) Not less than 14 days after the Secretary of State receives that copy, Monitor
10must send a copy to the relevant persons.

(7) Not less than 24 hours after complying with sub-paragraph (6), Monitor
must publish the report.

Changes following report

(1) This paragraph applies where a report of the Competition Commission on a
15reference—

(a) includes conclusions to the effect that any of the matters specified in
the reference operate, or may be expected to operate, against the
public interest,

(b) specifies effects adverse to the public interest which those matters
20have or may be expected to have,

(c) includes conclusions to the effect that those effects could be
remedied or prevented by changes to the matters specified in the
reference, and

(d) specifies changes by which those effects could be remedied or
25prevented.

(2) Monitor must make such changes to the matters specified in the reference as
it considers necessary for the purpose of remedying or preventing the
adverse effects specified in the report.

(3) Before making changes under this paragraph, Monitor must have regard to
30the changes specified in the report.

(4) Before making changes under this paragraph, Monitor must send a notice—

(a) stating that it proposes to make the changes and setting out their
effect,

(b) stating the reasons why it proposes to make the changes, and

(c) 35specifying the period within which representations with respect to
the changes may be made.

(5) A period specified for the purposes of sub-paragraph (4)(c) must not be less
than 28 days beginning with the day after that on which the notice is
published.

(6) 40Monitor must send the notice to the relevant persons.

(7) Monitor must also publish the notice.

(8) After considering such representations as it receives before the end of the
period under sub-paragraph (4)(c), Monitor must send a notice to the
Competition Commission—

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(a) specifying the changes it proposes to make to remedy or prevent the
adverse effects specified in the report, and

(b) stating the reasons for proposing to make the changes.

(9) Monitor must include with the notice under sub-paragraph (8) a copy of the
5representations referred to in that sub-paragraph.

(10) If a direction under paragraph 8 is not given to Monitor before the end of the
period of four weeks beginning with the date on which it sends the notice
under sub-paragraph (8), Monitor must make the changes specified in the
notice.

(11) 10If a direction under that paragraph is given to Monitor before the end of that
period, Monitor must make such of the changes as are not specified in the
direction.

Competition Commission’s power to veto changes

(1) The Competition Commission may, within the period of four weeks
15beginning with the day on which it is sent a notice under paragraph 7(8),
direct Monitor—

(a) not to make the changes set out in the notice, or

(b) not make such of the changes as may be specified in the direction.

(2) Monitor must comply with a direction under sub-paragraph (1).

(3) 20The Secretary of State may, within that period and on the application of the
Commission, direct that the period for giving a direction under sub-
paragraph (1) (and, accordingly, the period referred to in paragraph 7(10)) is
to be extended by 14 days.

(4) The Commission may give a direction under sub-paragraph (1) only in
25respect of such of the changes specified in the notice under paragraph 7(8)(a)
as it considers are necessary for the purpose of remedying or preventing one
or more of the adverse effects specified in the report as effects which could
be remedied or prevented by changes.

(5) If the Commission gives a direction under sub-paragraph (1), it—

(a) 30must give notice specifying the changes proposed by Monitor, the
terms of the direction and the reasons for giving it, and

(b) must itself make such changes to the matters specified in the
reference as it considers necessary for the purpose of remedying or
preventing the effects referred to in sub-paragraph (6).

(6) 35The effects mentioned in sub-paragraph (5)(b) are—

(a) in the case of a direction under sub-paragraph (1)(a), the adverse
effects specified in the report as effects which could be remedied or
prevented by changes, or

(b) in the case of a direction under sub-paragraph (1)(b), such of those
40adverse effects as are not remedied or prevented by the changes
made by Monitor under paragraph 7(11).

(7) In exercising its function under sub-paragraph (5)(b), the Commission must
have regard to the matters to which Monitor must have regard when
determining the matters specified in the reference.

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(8) Before making changes under sub-paragraph (5)(b), the Commission must
send a notice—

(a) stating that it proposes to make the changes and specifying them,

(b) stating the reason why it proposes to make them, and

(c) 5specifying the period within which representations on the proposed
changes may be made.

(9) The period specified for the purposes of sub-paragraph (8)(c) must not be
less than 28 days beginning with the date on which the notice is published.

(10) The Commission must send a notice under sub-paragraph (8) to the relevant
10persons.

(11) The Commission must also publish the notice.

(12) After making changes under this paragraph, the Commission must publish
a notice—

(a) stating that it has made the changes and specifying them, and

(b) 15stating the reason why it has made them.

Disclosure etc.

(1) Before making a report on a reference, giving or sending a notice under
paragraph 8(5)(a) or (8) or publishing a notice under paragraph 8(12), the
Competition Commission must have regard to the following considerations.

(2) 20The first consideration is the need to exclude from disclosure (so far as
practicable) any information the disclosure of which the Commission
considers is contrary to the public interest.

(3) The second consideration is the need to exclude from disclosure (so far as
practicable)—

(a) 25commercial information the disclosure of which the Commission
considers might significantly harm the legitimate business interests
of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose
disclosure the Commission considers might significantly harm the
30individual’s interests.

(4) The third consideration is the extent to which the disclosure of the
information mentioned in sub-paragraph (3)(a) or (b) is necessary for the
purposes of the report.

(5) For the purposes of the law relating to defamation, absolute privilege
35attaches to the report or notice.

Powers of investigation

(1) The following sections of Part 3 of the Enterprise Act 2002 (mergers) apply,
with the modifications in sub-paragraphs (3), (5), (6) and (8) to (11) for the
purposes of a reference as they apply for the purposes of references under
40that Part—

(a) section 109 (attendance of witnesses and production of documents),

(b) section 110 (enforcement of powers under section 109: general),

(c) section 111 (penalties),

(d) section 112 (penalties: main procedural requirements),

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(e) section 113 (payments and interest by instalments),

(f) section 114 (appeals in relation to penalties),

(g) section 115 (recovery of penalties),

(h) section 116 (statement of policy),

(i) 5section 117 (offence of supplying false or misleading information),
and

(j) section 125 (offences by bodies corporate) so far as relating to section
117.

(2) Those sections of that Part of that Act apply, with the modifications in sub-
10paragraphs (4), (5) and (7) to (11), for the purposes of an investigation by the
Competition Commission in the exercise of its functions under paragraph 8,
as they apply for the purposes of an investigation on references under that
Part.

(3) Section 110, in its application by virtue of sub-paragraph (1), has effect as
15if—

(a) subsection (2) were omitted,

(b) for subsections (5) to (8) there were substituted—

(5) Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
20which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111., and

(c) in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.

(4) Section 110, in its application by virtue of sub-paragraph (2), has effect as
25if—

(a) the modifications in sub-paragraph (3) were made,

(b) in subsection (4), for the words “the publication of the report of the
Commission on the reference concerned” there were substituted “the
relevant day”, and

(c) 30after that subsection there were inserted—

(4A) The relevant day for the purposes of subsection (4) is—

(a) the day on which the Commission published a notice
under paragraph 8(12) of Schedule 10 to the Health
and Social Care Act 2011 in connection with the
35reference concerned, or

(b) if it has not given a direction under paragraph 8(1) of
that Schedule in connection with the reference and
within the permitted period, the latest day on which
it was possible to give such a notice within that
40period.

(5) Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect
as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

(6) 45Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (1), has
effect as if—

(a) for the words from “published (or, in the case of a report under
section 50 or 65, given)” there were substituted “made”,

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(b) for the words “published (or given)”, in each place they appear, there
were substituted “made”, and

(c) the words “by this Part” were omitted.

(7) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has
5effect as if for sub-paragraph (ii) there were substituted—

(ii) if earlier, the relevant day (which for the purposes of
this subsection is to be construed in accordance with
section 110(4A)).

(8) Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect
10as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(9) Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(10) Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect
as if for “or (3)” there were substituted “, (3) or (5)”.

(11) 15Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.

(12) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular,
provisions relating to the making of orders) have effect for the purposes of
20the application of those sections by virtue of sub-paragraph (1) or (2) in
relation to those sections as applied by virtue of the sub-paragraph
concerned.

(13) Accordingly, corresponding provisions of this Act do not have effect in
relation to those sections as applied by virtue of the sub-paragraph
25concerned.

Section 105

SCHEDULE 11 Further provision about enforcement powers

Part 1 Discretionary requirements

30Procedure

(1) Where Monitor proposes to impose a discretionary requirement on a person,
Monitor must give notice to that person (a “notice of intent”).

(2) A notice of intent must—

(a) state that Monitor proposes to impose the discretionary requirement
35and set out its effect,

(b) set out the grounds for the proposal to impose the requirement,

(c) explain the effect of section 104 (enforcement undertakings),

(d) set out the circumstances (if any) in which Monitor may not impose
the requirement, and

(e) 40specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.

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(3) The notice period must be not less than 28 days beginning with the day after
that on which the notice of intent is received.

(4) But where Monitor—

(a) proposes to impose a compliance requirement or restoration
5requirement, and

(b) considers that a shorter notice period is necessary to prevent or
minimise further breaches of the kind referred to in section 103(1),

the notice period is to be such shorter period as Monitor may determine, but
not less than 5 days beginning with the day after that on which the notice of
10intent is received.

(1) After the end of the notice period Monitor must decide whether to—

(a) impose the discretionary requirement, with or without
modifications, or

(b) impose any other discretionary requirement.

(2) 15Where Monitor decides under sub-paragraph (1) to impose a discretionary
requirement on a person Monitor must give notice to that person (a “final
notice”).

(3) A final notice must—

(a) state that Monitor has decided to impose the discretionary
20requirement and set out its effect,

(b) set out the grounds for imposing the requirement,

(c) in the case of a variable monetary penalty, state—

(i) how payment may be made,

(ii) the period (“the payment period”) within which payment
25must be made,

(iii) any discount applicable for early payment of the penalty, and

(iv) the rate of interest payable for late payment of the penalty,

(d) set out the consequences of failing to comply with the requirement,
and

(e) 30explain the right of appeal conferred by paragraph 3.

(4) The payment period must be not less than 28 days beginning with the day
after that on which the final notice is received.

(5) Monitor must not decide under sub-paragraph (1) to impose a variable
monetary penalty unless the notice of intent was given before the end of the
35period of 5 years beginning with the day (or, in the case of a continuing
breach, the last day) on which the breach giving rise to the imposition of the
discretionary requirement occurred.

(1) A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a discretionary requirement.

(2) 40The grounds for an appeal under this paragraph are—

(a) that the decision was based on an error of fact,

(b) that the decision was wrong in law,

(c) in the case of a decision imposing a variable monetary penalty, that
the amount of the penalty is unreasonable,

(d) 45in the case of a decision to impose a compliance requirement or a
restoration requirement, that the nature of the requirement is
unreasonable, or

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(e) that the decision was unreasonable for any other reason.

(3) The discretionary requirement is suspended pending determination of the
appeal.

(4) On an appeal under this paragraph, the Tribunal may—

(a) 5confirm, vary or withdraw the discretionary requirement,

(b) take such steps as Monitor could take in relation to the breach giving
rise to the imposition of the requirement, or

(c) remit the decision whether to confirm the requirement, or any matter
relating to that decision, to Monitor.

4 10Monitor may by notice to a person on whom a discretionary requirement has
been imposed—

(a) withdraw the discretionary requirement,

(b) in the case of a variable monetary penalty, reduce the amount of the
penalty or extend the payment period, or

(c) 15in the case of a compliance requirement or a restoration requirement,
extend the period specified for taking the steps specified in the
requirement.

Non-compliance penalties

(1) If a person fails to comply with a compliance requirement or a restoration
20requirement Monitor may impose a monetary penalty on that person of such
amount as Monitor may determine (a “non-compliance penalty”).

(2) Where Monitor proposes to impose a non-compliance penalty on a person
Monitor must give notice to that person (a “non-compliance notice”).

(3) A non-compliance notice must—

(a) 25specify the amount of the non-compliance penalty,

(b) set out the grounds for imposing the penalty,

(c) state how payment of the penalty may be made,

(d) state the period (“the payment period”) within which payment must
be made,

(e) 30state any discount applicable for early payment of the penalty,

(f) set out the consequences of a failure to pay within the payment
period (including any increase in the amount payable), and

(g) explain the right of appeal conferred by paragraph 6.

(4) The payment period must be not less than 28 days beginning with the day
35after that on which the non-compliance notice is received.

(5) If the whole or any part of a non-compliance penalty is not paid by the time
it is required to be paid Monitor may increase the amount payable by no
more than 50% of the amount of the penalty.

(6) Monitor may by notice to a person on whom a non-compliance penalty has
40been imposed reduce the amount of the penalty or extend the payment
period.

(1) A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a non-compliance penalty.

(2) The grounds for such an appeal are—

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(a) that the decision was based on an error of fact,

(b) that the decision was wrong in law, or

(c) that the decision was, or the amount of the penalty is, unfair or
unreasonable.

(3) 5The non-compliance penalty is suspended pending determination of the
appeal.

(4) On an appeal, the Tribunal may—

(a) confirm, vary or withdraw the non-compliance penalty, or

(b) remit the decision whether to confirm the penalty, or any matter
10relating to that decision, to Monitor.

Recovery of financial penalties

(1) Amounts payable to Monitor of the kind mentioned in sub-paragraph (2) are
recoverable summarily as a civil debt (but this does not affect any other
method of recovery).

(2) 15The amounts are—

(a) a variable monetary penalty and any interest payable on it, or

(b) a non-compliance penalty.

Payments of penalties etc. into Consolidated Fund

8 Monitor must pay any sums it receives in respect of any of the following into
20the Consolidated Fund—

(a) a variable monetary penalty and any interest payable on it, or

(b) a non-compliance penalty.

Part 2 Enforcement undertakings

25Procedure

(1) Monitor must publish a procedure for entering into enforcement
undertakings.

(2) Monitor may revise the procedure and if it does so, Monitor must publish
the procedure as revised.

(3) 30Monitor must consult such persons as it considers appropriate before
publishing or revising the procedure.

(1) Where Monitor accepts an enforcement undertaking, Monitor must publish
the undertaking.

(2) But Monitor must not under sub-paragraph (1) publish any part of an
35enforcement undertaking which contains commercial information the
disclosure of which Monitor considers would or might significantly harm
the legitimate business interests of any person to whom it relates.

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Variation of terms

11 The terms of an enforcement undertaking (including in particular the action
specified under it and the period so specified within which the action must
be taken) may be varied if both the person giving the undertaking and
5Monitor agree.

Compliance certificates

(1) Where Monitor is satisfied that an enforcement undertaking has been
complied with, Monitor must issue a certificate to that effect (referred to in
this Schedule as a “compliance certificate”).

(2) 10A person who has given an enforcement undertaking may at any time make
an application to Monitor for a compliance certificate.

(3) The application must be made in such form, and accompanied by such
information, as Monitor requires.

(4) Monitor must decide whether or not to issue a compliance certificate, and
15give notice to the applicant of its decision, before the end of the period of 14
days beginning with the day after that on which the application is received.

(1) An appeal lies to the First-tier Tribunal against a decision of Monitor to
refuse an application for a certificate of compliance.

(2) The grounds for an appeal under this paragraph are that the decision—

(a) 20was based on an error of fact,

(b) was wrong in law, or

(c) was unfair or unreasonable.

(3) On an appeal under this paragraph, the Tribunal may confirm Monitor’s
decision or direct that it is not to have effect.

25Inaccurate, incomplete or misleading information

14 Where Monitor is satisfied that a person who has given an enforcement
undertaking has supplied Monitor with inaccurate, misleading or
incomplete information in relation to the undertaking—

(a) Monitor may treat the person as having failed to comply with the
30undertaking, and

(b) if Monitor decides so to treat the person, Monitor must by notice
revoke any compliance certificate given to that person.

Section 118

SCHEDULE 12 Procedure on references under section 118

35Contents etc. of reference

(1) A reference under section 118 must specify—

(a) Monitor’s reasons for proposing the method to which the reference
relates, and